MICHAEL TERRENCE HOGAN and REPATRIATION COMMISSION

[2009] AATA 288

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 288

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/0840

VETERANS'       APPEALS        DIVISION		)
Re		MICHAEL TERRENCE HOGAN

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Brigadier C Ermert, Member

Date28 April 2009

PlaceMelbourne

Decision The Tribunal affirms the decision under review.

(sgd) C. Ermert

Member

VETERANS’ AFFAIRS – eligible war-service – boredom in camp – trepidation over ongoing career in Army – other people smoking – commencement of smoking - conditions of malignant neoplasm of the thyroid, goitre and diabetes mellitus related to smoking – whether smoking caused by war-service – decision affirmed

Veterans’ Entitlements Act 1986 s 23, s 24

Kattenberg v Repatriation Commission [2002] FCA 412
Repatriation Commission v Tuite (1993) 29 ALD 609
Repatriation Commission v Stephen Edward Keenan [1989] FCA 410
Repatriation Commission v Law (1980) 31 ALR 140
Repatriation Commission v Stella Margaret Hughes [1990] FCA 505
Repatriation Commission v Geraldine Kitch Edwards [1993] FCA 434
Repatriation Commission v Stoddart [2003] FCAFC 300

REASONS FOR DECISION

28 April 2009 Brigadier C. Ermert, Member

INTRODUCTION

1.      Mr Hogan, the applicant in this case, was called up for National Service in the Australian Army (the Army) and began his service on 7 July 1971.  He was discharged on 6 January 1973, (T3, page 1) on the completion of his service of 18 months.  After the completion of his recruit training, Mr Hogan underwent further training as a Field Engineer at 17 Construction Squadron.  On 1 January 1972 Mr Hogan was posted to 2 Field Engineer Regiment as a Field Engineer.  On 24 January 1972 he was again posted, this time to 1 Recruit Training Battalion, not as a Field Engineer but as a General Dutyman.  On 19 December 1972 Mr Hogan went on leave until his discharge from the Army.  According to his evidence, Mr Hogan developed a smoking habit during this period which contributed to his conditions of malignant neoplasm of the thyroid gland, goitre and diabetes mellitus.  Mr Hogan lodged a claim with the Repatriation Commission for medical treatment and a pension due to incapacity as a result of those conditions.

2.      Mr Hogan’s service from 7 December 1972 until his discharge on 6 January 1973 is eligible service under the provisions of the Veterans’ Entitlements Act 1986 (the Act).  On 9 July 2007 the Repatriation Commission refused Mr Hogan’s claim on the basis that his conditions were not war-caused.  On 5 February 2008 the Veterans’ Review Board affirmed the decision of the Repatriation Commission.  This matter is an application for review of the decision of Veterans’ Review Board. 

THE HEARING

3.      At the hearing Mr Hogan was represented by Mr Horan, and the respondent was represented by Mr K Rudge, an advocate with the Department of Veterans’ Affairs.  The Tribunal heard evidence from Mr Hogan, Mr Uldis Karklins, a friend of the applicant, Mr Shaun Hogan, the brother of the applicant and Mrs Maureen Lynch, a sister of the applicant.  The Tribunal also heard evidence, via a telephone link, from Dr Peter Stevenson, a consultant physician. 

THE ISSUES

4.      The issue in this case is whether Mr Hogan’s conditions of malignant neoplasm of the thyroid gland, goitre and diabetes mellitus are war-caused within the meaning of the Act.

5.      The connection of each of the claimed conditions with Mr Hogan’s eligible service is Mr Hogan’s smoking habit.  Thus, the first issue to be determined in this case is whether Mr Hogan’s smoking can be attributed to his period of eligible service.  If that attribution is determined, the Tribunal will then consider whether each of the conditions is connected with Mr Hogan’s smoking habit. 

6.      As this is a matter relating to eligible war-service it is to be decided on the balance of probabilities.

Mr Hogan’s Smoking Habit

7.      Mr Hogan’s evidence was that he began smoking on a regular basis very late in his Army service, while at Kapooka, because of boredom, trepidation about not knowing whether to leave or stay in the Army, his expectations of an Army career not being met and because there was a lot of drinking and smoking going on.  Of the history recorded by Mr GJ Powell, surgeon, that he had been smoking since the age of 11 (Exhibit R6, page 312), Mr Hogan said it was a mistake.  He said that he had a couple of cigarettes at ages 14 and 16, for which he received a hiding from his parents and that was it.  Mr Hogan also said that, as a result of the treatment he has received for his cancer condition, his memory in regard to his smoking was not good; however, he was certain he did not start smoking until seriously late in the Army (transcript, page 35).  The Army’s Leave Record (Exhibit R1, page 21) shows that Mr Hogan was on leave from 19 December 1972 to 6 January 1973.  Mr Hogan’s evidence was that during this time he spent most of that time in camp but that he was also seeing someone in town. 

8.      In a Statutory Declaration dated 18 July 2007 (T7, page 38) Mr Karklins stated that he recalled visiting Mr Hogan at the Army base in Wagga Wagga during December 1972 with Shaun Hogan and a friend.  They stayed for three days, fishing and camping and I can assure you Michael was not smoking at that stage.  In his oral evidence Mr Karklins was not sure about the dates of that visit in December but said it was late December or January. 

9.      Mr Shaun Hogan also gave evidence of the fishing trip and said that it occurred during an industry wide Christmas stand-down period lasting from 17 or 19 December 1972 until 17 to 20 January 1973.  Mr Shaun Hogan said of his brother at that time that … he didn’t look as though he was smoking … when he definitely came out he was smoking though, smoking like a chimney (transcript, page 17). 

10.     In her evidence, Mrs Lynch said that Mr Hogan did not smoke when he went in to the Army and he did not smoke when she saw him in the Army but she recalled him smoking some time after he came out of the Army.  Mrs Lynch said that the last occasion she saw Mr Hogan while he was in the Army was at Kapooka and thought it was during October 1972. 

11.     The Smoking Questionnaire signed by Mr Hogan on 1 January 2005 (Exhibit R3) contains statements:

(a)that he first started smoking on a regular basis towards the latter part of my National Service enlistment, (mid) 1972;

(b)that the reason was Constant contact with smokers in the Army. Smoking was positively encouraged by Army NCOs.  When I joined 17 Const. Sqn there was a downturn in training activity as the Army was pulling out of its commitment in Vietnam.  Thus there were long periods of inactivity, boredom set in and smoking helped relieve the boredom;

(c)that in October or November 1972 he increased his smoking to 15 cigarettes per day because he was hospitalised at either Casula or Enoggera; and

(d)that in January or February 1973 he increased his smoking to 30 cigarettes a day because of the development of the habit that I have not been able to break… 

12.     When questioned about his statements in the Questionnaire Mr Hogan said the reference to 17 Construction Squadron was a mistake and that he had commenced smoking while at Kapooka.  Mr Hogan said that at the time of filling in the form he did not realise its importance and that Mr Karklins had subsequently reminded him that he was not smoking when he was with 17 Construction Squadron.  Mr Hogan said his memory was not crystal clear due to his cancer treatment.  When asked why he had been so specific about 17 Construction Squadron, Mr Hogan said that everything before that was training but at the Squadron there was actual work, unloading and cleaning gear coming back from Vietnam.  When Mr Hogan was transferred to Kapooka, however, he immediately commenced duties with the ground staff. 

13.     Mr Horan submitted that, from the evidence of Mrs Lynch and Mr Shaun Hogan, he could be confident that Mr Hogan was not smoking prior to 19 December 1972.  Although this date is much later in time than indicated in Mr Hogan’s Smoking Questionnaire the date is generally supported by Mr Hogan’s own evidence to the Tribunal that he did not start smoking until seriously late in the Army. 

14.     In considering Mr Hogan’s circumstances from 19 December 1972 to the end of his eligible service on 6 January 1973, I note that Mr Hogan was in fact on leave.  Mr Hogan gave evidence that during this time, although he slept mainly in the camp, he spent time seeing someone in the town of Wagga Wagga.  It was also during this period that Mr Hogan joined his brother and Mr Karklins on the three day fishing trip.  From this evidence I conclude that Mr Hogan could have spent no more than 16 days of his eligible service in camp, during all of which time he was on leave and seeing someone in town, albeit sleeping in the camp. 

15.     Mr Horan submitted that Mr Hogan began to smoke because of boredom, trepidation about not knowing whether to leave or stay in the Army, his expectations of an Army career not being met and because there was a lot of drinking and smoking going on.  I find it difficult to relate those reasons to the period from 19 December 1972 to 6 January 1973.  During that time Mr Hogan was participating in a three day fishing trip or otherwise seeing someone in town.  These activities do not indicate boredom.

16.     When questioned on the point, Mr Hogan agreed that when he went on leave on 19 December 1972 he probably would have known that his discharge from the Army was to be effected on 6 January 1973 (transcript, page 37).  Indeed, Mr Hogan signed a form on 1 December 1972 which contained the information Discharge Procedure Commenced and Scheduled for 7 Jan (Exhibit 1, page 29).  I consider it unlikely that, at this final stage of his service, Mr Hogan would have felt trepidation about not knowing whether to leave or stay in the Army.  His discharge date was already fixed, and had been fixed for some time.  I apply the same reasoning to Mr Hogan’s expectations of an Army career not being met.  Mr Hogan’s Army career was effectively at an end on 19 December 1972 and I consider it inconceivable that Mr Hogan had not realised much earlier that any career expectations he may have had were no longer possible.

17.     In regard to the amount of smoking and drinking going on during this time I note Mr Hogan went on a three day fishing trip, which did not involve smoking.  He also spent time in town during this period.   I do not accept that other people’s smoking and drinking in camp during the very short time Mr Hogan spent in the camp during this period could have had influenced him to begin smoking. 

18.     From the above reasons, I cannot accept as reasonable the submissions put by Mr Horan that boredom, trepidation about the future, disappointment in career expectations and other people’s smoking and drinking caused Mr Hogan to commence smoking. 

19.     In his submissions Mr Horan referred the Tribunal to the Federal Court decision of Kattenberg and Repatriation Commission [2002] FCA 412 (11 April 2002). He submitted that the judgement reinforced section 9(2) of the Act, which provides that where an incapacity would not have occurred but for the veteran’s eligible war service then the incapacity shall be deemed to be a war‑caused disease. The judgement in Kattenberg found that the veteran’s smoking during his service was a material contribution to the totality of his smoking habit.  In this case there is evidence from Mr Hogan that he began his smoking habit during the last period of his Army service.  However, I am satisfied there is no evidence that there were any circumstances during that service that caused Mr Hogan to begin smoking.  Thus, in this case, Mr Hogan’s eligible service has made no contribution to his smoking habit, let alone a material contribution. 

20.     Mr Horan also referred the Tribunal to the Federal Court decision in Repatriation Commission v Tuite (1993) 29 ALD 609. In the fourth paragraph their Honours said:

T[uite] had not smoked before enlisting in the army at age 24.  By the end of his first 14 days in camp, T[uite] was smoking about 20 cigarettes a day.  T[uite] claimed that it was the circumstances in camp which caused him to smoke.  Some of those circumstances were that cigarettes were cheap, other people were smoking, and he felt a certain degree of apprehension as regards his future in the army.  The tribunal also noted that T[uite] was “in a milieu totally different to that which he had experienced” before he went into the army.

Further on page 611, they said (quoting Mason CJ in March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 at 515):

The common law tradition is that what was the cause of a particular occurrence is a question of fact which “must be determined by applying common sense to the facts of each particular case.”

And on page 612, their Honours said:

If the circumstances of eligible war service provide an operative cause contributing to the serviceman’s injury or disease, it matters not that the relevant circumstances such as peer pressure to smoke could be found elsewhere than in camp life.  The question in each case and is a question of fact for the administrative decision maker is whether the eligible war service contributed causally to the injury or disease.

21.     In response, Mr Rudge submitted that the apprehension experienced by Mr Tuite was caused by his preparations to go to war, which is a different circumstance to that of Mr Hogan.

22.     In the present case, after applying common sense to the facts, I have found that peer pressure could not reasonably have influenced Mr Hogan to begin smoking in the last two weeks of his service.  Not only was there insufficient time for such an influence to be effective, Mr Hogan’s evidence was that he was not in camp for much of the time.  Furthermore, Mr Hogan had no apprehensions of going to war equating to Mr Tuite’s circumstances.  In addition, the circumstances of Mr Hogan being on leave cannot be considered a milieu totally different to that which he had experienced before he went into the army. 

23.     Mr Horan next referred the Tribunal to the Federal Court decision in Repatriation Commission v Keenan [1989] FCA 410 (29 September 1989). Mr Horan submitted that the matter was basically one of when smoking commenced. Mr Rudge went on to discuss that point, specifically related to whether sufficient causal connection had been shown between Mr Keenan’s war service and his later having smoked cigarettes extensively for 40 years. In Keenan, Pincus J said (at paragraph 16):

Mr Keenan’s case was such that it could not succeed unless it was shown that he began to smoke cigarettes during the war, but it was equally plain that he would not necessarily succeed even then.  The effect of his evidence was that he had never smoked in his life before a visit to a military hospital in 1943, that he then smoked little and later gave up smoking for four or five months after leaving the army. He was asked why he recommenced smoking and said, among things, “That he got pretty bored.”  Counsel for Mr Keenan suggested in the court that once it was shown that Mr Keenan started smoking in hospital during the war, the requirement of a causal connection with his circulatory diseases was satisfied.  “Smoking tobacco,” he said, “is notoriously addictive.  There can be no difficulty about taking judicial knowledge of that …

24.     Mr Rudge submitted that Keenan makes the point that the fact that smoking commences during service is not enough under the legislation.  There has to be a causal connection. 

25.     In his judgement Pincus J referred to the Full Federal Court decision in Repatriation Commission v Law (1980) 31 ALR 140 and said:

… for Law’s case shows that war service need not be the sole or dominant cause and that it is enough that it be a contributory cause. 

Pincus J went on to remit the matter for reconsideration as the Tribunal gave no express consideration to the question of causation.

26.     In the present case, I have given the following express consideration to the question of causation.  Over the period of Mr Hogan’s eligible service, there is evidence that he was not smoking before 19 December 1972; and from that date until his discharge from the Army on 6 January 1973 there were no factors that could reasonably influence him to start smoking.  On the balance of probabilities I find that there is no causal connection between Mr Hogan’s eligible service and the commencement of his smoking. 

27.     Mr Horan referred the Tribunal to the Federal Court decision of Repatriation Commission v Stella Margaret Hughes [1990] FCA 505 (14 December 1990). The Court overturned the decision of the Tribunal, which had determined that a mere temporal connection was not sufficient evidence pointing to a causal connection with the veteran’s smoking habit. I note that Hughes involved operational service and was therefore decided, not on the balance of probabilities, but on the basis of there being a reasonable hypothesis.  The present matter is to be determined on the balance of probabilities; and on that basis I am not satisfied that there is a causal connection between Mr Hogan’s smoking and his eligible service.

28.     Mr Horan also referred the Tribunal to the Federal Court decision of Repatriation Commission v GeraldineKitch Edwards [1993] FCA 434 (3 September 1993). Quoting the decision under review in that case, the Tribunal had said:

The boredom of service for an eminent tennis coach is, in our view, a contributing cause not merely the setting in which his smoking occurred. We also find that by the end of his service he had developed a very heavy smoking habit which continued for the rest of his life, and this smoking habit was attributable to his service.

29.     In Edwards the Court said (at paragraphs 27 and 28):

27.. Although the facts of Tuite's Case were different from the facts of the present case, the Tribunal was justified in relying upon it as authority for the proposition that "eligible war service" encompasses not only active service but all the incidents of service such as life in camp (per Davies J at 541) and that boredom of life in camp may be an incident of camp life which can have a causal influence upon the decision of the veteran to take up smoking and upon his continuing that habit (per Burchett and Einfeld JJ at 545).

28. Although the evidence in this … is rather meagre; nevertheless the evidence … was accepted by the Tribunal as sufficient to support its finding that it was reasonably satisfied of the requisite causal link between the veteran's smoking and his war service. … Fragile though the evidence may be, it has not been established to my satisfaction that the Tribunal erred in its conclusion.

30.     In the present case, however, there is no evidence that the veteran was suffering boredom from his duties in the camp during the relevant period.  On the contrary, Mr Hogan was on leave, spending three days on a fishing trip and the rest of the time seeing someone in town.  His time in camp was for the purpose of sleeping.  I am not satisfied on the basis of that evidence that Mr Hogan suffered boredom during the period as a result of his eligible service. 

31.     Finally, Mr Horan referred to the decision of the Full Court of the Federal Court in Repatriation Commission v Stoddart [2003] FCAFC 300 (19 December 2003). Mr Horan submitted:

… the matter that this case dealt with was the subject of objective approaches to problems.  The judgement goes on to say:

That just because events are objectively mutual in character may nonetheless reasonably give rise to a perceived threat because of what they convey to a particular person who experiences them given his or her position at the time.

So we have heard from Mr Hogan, from the objective point of view, how he felt.  It’s easy to say well, you could have got out of the army straight away.  He was hedging his bets to a certain extent.  He was waiting.  He decided to finish his time.  Something may have happened that would enable him to be able to stay in the army and perhaps make a career of the army and not go back to the hit-and-miss sort of work that he was involved with before his enlistment, that of being a builder’s labourer, heavy, dirty manual labour which was not constant.

And perhaps he saw the army as a means of bringing some sort of stability of that nature into his life. (transcript, pages 58-59)

32.     In the present case, I do not accept that Mr Hogan was under any sort of threat during the final period of his service.  He was no longer in a position of hedging his bets or waiting for something to happen to enable him to stay and make a career of the Army.  Mr Hogan was aware that he was to be discharged in two weeks at the conclusion of his leave.  I can find no threats that Mr Hogan could have perceived at the time.

33.     In considering the above decisions I have found the circumstances in each of them to be sufficiently different from the circumstances of the present matter that they do not constrain my decision.  Hence, I am unchanged in my finding that Mr Horan’s claimed circumstances of boredom, trepidation about the future, disappointment in career expectations and other people’s smoking and drinking did not cause him to begin smoking.  As a result, I find that Mr Hogan’s smoking habit was not war‑caused.

34.     The only factor that could connect Mr Hogan’s eligible service with his conditions of malignant neoplasm of the thyroid gland, goitre and diabetes mellitus is the commencement of his smoking.  I have just found that there is no causal connection between Mr Hogan’s smoking and his eligible service.  Accordingly, there can be no connection linking his claimed disabilities with his eligible service.

35.     As a result, I find that Mr Hogan’s conditions of malignant neoplasm of the thyroid gland, goitre and diabetes mellitus are not war-caused within the meaning of the Act.

DECISION

36.     The Tribunal affirms the decision under review.

I certify that the thirty-six [36] preceding paragraphs are a true copy of the reasons for the decision herein of

Brigadier C. Ermert, Member

Signed       Olympia Sarrinikolaou

Clerk

Date of Hearing:  16 January 2009

Date of Decision:  28 April 2009

Advocate for the applicant:          Mr J Horan

Advocate for the respondent:       Mr K Rudge, Advocacy Section,

Department of Veterans’ Affairs